Single judge quashed criminal proceedings for alleged land encroachment and damage to Gram Sabha land, holding the Prevention of Damage to Public Property Act inapplicable and noting lack of mens rea for criminal trespass.
Quashed Case Crime No. 850 of 2017 and the cognizance order dated 14.10.2019 in Criminal Case No. 2418 of 2019.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Reserved AFR
Case :- APPLICATION U/S 482 No. - 9964 of 2020 Applicant :- Munshi Lal And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rakesh Kumar Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Sunita Agarwal,J.
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provisions cannot be invoked to lodge a criminal case on the allegations of damage or loss caused to the Gram Sabha land. The Magistrate has acted illegally and without application of judicial mind in taking cognizance on the charge sheet submitted under Section 2/3 of the P.D.P.P. Act, 1984.
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is found in occupation of any such land in contravention of the provisions of the Revenue Code, the Sub-Divisional Officer has to issue notice to the person concerned to show cause as to :- (i) why compensation for damage, misappropriation or wrongful occupation specified in the notice be not recovered from him? (ii) why he should not be evicted from such land?
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order passed in such suit or proceeding.
Chapter XV of the Revenue Code, 2006 talks of penalties for encroachment and provides that any person who encroaches upon or causes any obstruction to the use of any public land (including chak road), path or common land of the village, shall be liable to a fine minimum Rs. 500/- and not exceeding Rs. 2,000/- and in case of his repetitive act, the Sub-Divisional Officer or the Tehsildar may require him to execute a personal bond for a sum not exceeding of Rs. 5,000/-.
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vandalism and damage to public property including destruction and damage caused during riots and public commotion. A need was felt to strengthen the law to enable the authorities to deal with cases of damage to public property. The “public property” as defined under Section 2(b) of the P.D.P.P. Act, 1984 means any property, whether immovable or movable (including any machinery) which is owned by or in possession of or under the control of the Central or State Government or any local authority or any Corporation or any institution established by the Central, Provincial or State Act or its undertaking. Section 3 of the P.D.P.P. Act, 1984 provides that anyone who commits mischief by doing any act in respect of any 'public property' including the nature referred in subsection (2) in the said section shall be punished with imprisonment and a fine depending upon the nature of the property as per sub-section (1) and sub-section (2) of Section 3 of the P.D.P.P. Act, 1984. Section 4 provides punishment for an act of 'Mischief' causing damage to pubic property by fire or explosive substance. The P.D.P.P. Act, 1984 is, thus, a Special Act enacted to punish for the offence committed under Sections 3 and 4 of the said Act by doing any act of vandalism including the destruction or damage during any riots or public demonstration in the name of agitations, bandhs, hartals and the like. The “Mischief” has been defined under Section 2(a) of the P.D.P.P. Act, 1984 having the same meaning as in Section 425 of the Indian Penal Code (45 of 1860). Section 6 is the saving clause which says that the Act' 1984 covers the offence committed under it and the provisions of it are in addition to any other law which provides for any proceeding (whether by way of investigation or otherwise) which may be instituted or taken against the offender, apart from this Act. Special provisions with regard to disposal of a prayer for bail made by a person accused of commission of offence under the Act' 1984 has been provided under Section 5 of the P.D.P.P. Act, 1984.
The provisions oblige a person found guilty of commission of offence to pay the damage or loss caused to the public property. This Act,
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thus, covers the specific area of damage or loss or destruction of public property and recovery of such damages from the person(s) who is/are found guilty of such damage during the course of any public demonstration in the name of agitations, bandhs, hartals and the like. 12. In Re. Destruction of Public and Private Properties, In Re vs. State of Andhra Pradesh and others1 . Taking a serious note of various instances where there was a large scale destruction of public and private properties in the name of agitations, bandhs, hartals and the like, suo motu proceedings had been initiated by the Apex Court and two committees were appointed to give suggestions on strengthening of the legal provisions of P.D.P.P. Act to effectively deal with such instances. The recommendations of two committees were considered and it was observed that the suggestions were extremely important and they constitute sufficient guidelines which need to be adopted. It was left open to the appropriate authorities to take effective steps for their implementation.
In a recent decision in Kodungallur Film Society and another vs. Union of India and others2 , relief was sought to issue a mandamus to the appropriate authorities to strictly follow and implement the guidelines formulated by the Apex Court “Destruction of Public & Private Properties In re:”, with regard to measures to be taken to prevent destruction of public and private properties in mass protests and demonstrations and also regarding the modalities of fixing liability and recovering compensation for damages caused to public and private properties during such demonstration and protests.
It was acknowledged in Kodungallur Film Society2 that the recommendations of the Committee noted in the said judgment travesed the length and breadth of the issue at hand and, if implemented in their entirety, would go a long way in removing the bane of violence caused against persons and property.
1 2009 (5) SCC 212
2 2018 (10) SCC 713
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As far as implementation of the said recommendations, the Union had advised the States to follow the same in its letter and spirit. Issuing directions to implement recommendations made by the Apex Court in both the above decisions. Direction was issued in Kodungallur Film Society2 to both the Central and the State Government to do the same at the earliest.
The area which is covered by the P.D.P.P. Act, 1984 is, thus, confined to the destruction or damage to the 'public property' within the meaning of Section 2(b) of the Act during the course of riots or public demonstrations (commotion). The said provisions, in the considered opinion of the Court, cannot be invoked for lodging the criminal complaint or the first information report on the allegations of damage or loss caused to the Gram Sabha land by illegal encroachment against a person permanently residing in the village or a tenure holder of any land in the village in question.
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to constitute criminal trespass, the prosecution has to prove and the Court has to return a finding on the evidence that the trespass was committed with one of the intents enumerated in Section 441 of the Indian Penal Code. The prosecution has, thus, not only to allege but also to prove that the entry or unlawful occupation must be with an intent; (i) to commit an offence; or (ii) to intimidate, insult or annoy any person in possession of the property”. Every 'trespass' by itself is not criminal. In absence of any such finding, the conviction under Section 447 IPC cannot be sustained. The offence under Section 447 I.P.C. though is cognizable but is also a compoundable offence triable by any Magistrate, trial of which has to be conducted summarily. A charge under this section should specifically state intent which is alleged. The accused may lay a bonafide claim and right in the land in question. Although he may have no right to the land but he cannot be convicted of criminal trespass unless it is proved by the prosecution that he did so with an intention to intimidate, insult or annoy the person in possession or to commit an offence. The complainant need not be necessarily a person in actual physical possession of the land in question on the date of entry of the trespasser, i.e. the accused person. He may be a person to whom the land in question belonged or deemed to have been vested. The person who actually owns the land or property is the competent person to lodge the complaint.
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of encroachment on 'Banjar' land and not on a 'public utility land', which can be regularized if a proceeding for eviction is instituted against the applicants under the Revenue Code, 2006 as they may take a defence of being landless labourers of the village concerned, i.e. of being eligible persons for allotment of land or reqularization of their occupation/possession.
The application stands allowed .
Order Date :- 6.8.2020 Brijesh
(Sunita Agarwal, J.)
3 issues framed by the court
Whether the Prevention of Damage to Public Property Act, 1984 is applicable to allegations of land encroachment by a village resident.
Whether a criminal charge of criminal trespass can be sustained without proof of specific intent to commit an offence or cause annoyance.
Whether the impugned cognizance order passed by the Magistrate constituted an abuse of the process of the court.
Colour shows how this judgement treated each authority
State of Andhra PradeshReferred¶26
In Re. Destruction of Public and Private Properties, In Re vs. State of Andhra Pradesh (2009 (5) SCC 212) · Who else cites this
Union of IndiaReferred¶27
Kodungallur Film Society and another vs. Union of India and others (2018 (10) SCC 713) · Who else cites this
4 provisions across 4 enactments
Munshi Lal and Another
State of U.P.
Sunita Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
